On December 17, 2011, Senator Harry Reid (D-Nev.) introduced a “cloture” motion to “bring to a close” the debate on the motion to allow the PROTECT IP Act (S. 968) to be considered on the floor of the Senate, about which Senator Wyden has been successful so far in placing “on hold.”

To the non-Washington-insiders among us (myself included), a “cloture motion” is an archaic expression that requires definition. According to Black’s Law Dictionary (West 6th ed. 1991), a cloture is a “legislative rule or procedure whereby unreasonable debate (i.e., filibuster) is ended to permit vote to be taken.” The term filibuster is defined as “tactics designed to obstruct and delay legislative action by prolonged and often irrelevant speeches on the floor of the House or Senate.” Id.

Certainly, after Senator Wyden announced that he intended to place a “hold” on floor consideration of the bill, a cloture would be the necessary next step to initiate a Senate-wide vote on the bill.

According to the Congressional Record, the cloture vote is scheduled for January 24, 2012, beginning at 2:15pm. Congr. Rec. S8783 (Dec. 17, 2011) (“Mr. REID. Mr. President, I ask unanimous consent that the cloture vote on the motion to proceed to S. 968 occur at 2:15 p.m. on Tuesday, January 24–that is the day after we start the session–and that the mandatory quorum under rule XXII be waived. . . . The PRESIDING OFFICER. Without objection, it is so ordered.”).

Immediately after the cloture was introduced, Senator Wyden again expressed his intent to filibuster the bill. Press release, Dec. 17, 2011 (“Therefore, I will be working with colleagues on both sides of the aisle over the next month to explain the basis for this wide-spread concern and I intend to follow through on a commitment that I made more than a year ago, to filibuster this bill when the Senate returns in January.”).

This statement is repeated in the Congressional Record immediately following Sen. Reid’s request for scheduling, but the Record incorrectly categorized his statement as relating to the “Personal Information Protection Act” (presumably because Sen. Wyden used the acronym “PIPA” in his remarks). Given the duplication between Sen. Wyden’s press release (specifically referring to the Protect IP Act) and this statement on the public record, it appears that the Congressional Record is simply mistaken in this instance.

On December 12, 2011, Representative Lamar Smith, chairman of the House Committee on the Judiciary, introduced a “Manager’s Amendment” to the pending Stop Online Piracy Act (H.R. 3261), in advance of a scheduled hearing and markup session before the Committee on December 15 and 16, 2011. On December 14, he issued a press release challenging the opposition that had garnered significant press attention. In it, he denounced the opposition, claiming that it is either mistaken about the actual contents of the bill or that its complaints are simply outdated because of the changes made in the Manager’s Amendment.

With regard to Google, one of the loudest opponents of both the PROTECT IP Act and SOPA, Chairman Smith stated, “In August, Google paid half a billion dollars to settle a criminal case because of the search engine giant’s active promotion of foreign rogue pharmacies that sold counterfeit and illegal drugs to U.S. patients.  Their opposition to this legislation is self-serving since they profit from doing business with rogue sites that steal and sell America’s intellectual property.”

Webcasts for the hearing and markup sessions may be found in the Committee’s hearing notices, although news reports indicate that the first session ran a “marathon” twelve hours, so be prepared for the long session. Tamlin Bason, “Rep. Lamar Smith Delays SOPA Markup, Will Consider a Hearing on DNS Blocking,” 83 BNA Patent Trademark & Copyright Journal 261 (Dec. 23, 2011) (subscription access required). Draft transcripts are available for both the December 15 (459 pages) and December 16 (58 pages) sessions. An additional markup session originally scheduled for December 21, 2011, was postponed “due to House schedule” (presumably referring to the recess taken on December 20.) A summary of the proposed amendments and vote count can also be found on the Committee’s hearing page.

According to a Summary statement issued by the Committee on the Judiciary, the Manager’s Amendment makes the following changes:

1. Clarifies that the bill does not require that users of a targeted website be directed or redirected to another site;
2. Establishes a “kill switch” that would allow an ISP to decline to carry out any court order that it finds would “impair the security or integrity of the system” – thus protecting the security and integrity of the DNS (domain name system);
3. Applies only to foreign websites;
4. Adds new savings clauses – a) providing no duty to monitor illegal activity on a provider’s network or service; b) does not impose a technology mandate on any party; and c) leaves all DMCA safe harbors in place for intermediaries;
5. Removes the pre-suit notification provision to “encourag[e] parties to engage in voluntary, completely market-based solutions;”
6. Removes language in the private right of action that provided liability in cases of willful blindness or engaging/facilitating in the infringement/counterfeiting;
7. Limits the definition of intermediaries that could be subject to this bill;
8. Provides that ISPs cannot be ordered to block a subdomain;
9. Provides that search engines would be allowed to continue to deliver links to any legitimate subdomains or portions of the site that do not infringe; and
10. Clarifies that the ISPs may only be required to take measures that they determine are the “least burdensome, technically feasible, and reasonable.”

People in the IP community have asked why the DMCA (Digital Millenium Copyright Act) can’t simply be applied to seek takedowns of infringing/counterfeiting sites such as these. Chairman Smith answered that question in a December 15 public statement about the necessity for legislation such as the Stop Online Piracy Act:

• It provides no effective relief when a rogue web-site is foreign-based and foreign-operated like PirateBay – the 89th most visited site in the U.S.;
• It doesn’t protect trademark owners and consumers from counterfeit and unsafe products like fake prescription medications available on legitimate-appearing but unlicensed “online pharmacies”;
• It doesn’t assist copyright owners when foreign rogue sites are devoted to the theft of intellectual property on a massive scale;
• And, finally, it does nothing to address the use of intermediaries such as payment processors and Internet advertising services that are employed by criminals to fund illegal activities.”  

Id. (bullets added).

Chairman Smith indicated at the close of the December 16 session that he may entertain additional markup sessions, but as Congress is now in recess, these sessions will likely be scheduled after the next session begins on January 17, 2012.

The Judiciary Committee’s “Rogue Websites” page has some interesting links to various articles demonstrating support for SOPA and various summaries and fact sheets about the bill. The page does not purport to be an unbiased recitation of commentary to date about SOPA (for instance, it does not catalog the various positions articulated in opposition to the bill), it provides a useful one-stop-shop for statements in support that may not be available together elsewhere.

On December 8, 2011, a group of Senators and Representatives proposed an alternative bill aimed at combating foreign websites that engage in counterfeiting or infringement of U.S. trademarks or copyrights. The new bill, entitled “The Online Protection and Enforcement of Digital Trade Act” (the OPEN Act) was launched by U.S. Senators Cantwell, Moran, Warner and Wyden and U.S. Representatives Chaffetz, Campbell, Doggett, Eshoo, Issa, Lofgren and Polis. (Senator Wyden had previously announced his intent to block any request for unanimous consent to consider the currently-pending PROTECT IP Act in the Senate, but has proposed this bill as an alternate.)

What’s so unusual about this bill? It’s not currently available on Thomas.gov, although a recent press release available on Sen. Wyden’s website has identified the bill as having been “introduced.”  [Searches of Thomas.gov indicate that the bill will be numbered S. 2029 and will be available once received from the Government Printing Office.]  Instead, the current text of the bill can be accessed through a website called http://www.keepthewebopen.com/. Visitors to the site can create an online profile and submit suggestions for improvement of the bill. At the site, in big red letters is a button inviting users to “PARTICIPATE” and the press release announcing the launch of the website describes it as “providing an unprecedented opportunity for members of the public and stakeholders to participate in the legislative process.”

The text of the bill can be found in PDF format, and a summary document entitled, Fighting the Unauthorized Trade of Digital Goods While Protecting Internet Security, Commerce and Speech, explains the purpose of the bill. (An additional section-by-section summary of the bill can be found on the Keep the Web Open site.)

The bill sponsors explained that this bill is intended to place jurisdiction over policing imports into the U.S. from these foreign web sites back in the hands of the International Trade Commission (ITC), thereby allowing this process to use already existing ITC procedures instead of creating new frameworks – thus potentially increasing due process protections and consistency of rulings among the arbiters. The bill also authorizes the dramatic increase of staffing in the ITC in order to permit it to absorb the new responsibilities.

Here’s how it would work:  a U.S. rights holder who believes that a particular web site violates its rights may submit a complaint to the ITC, which will launch an ITC investigation into the operation of the site. If the ITC determines that the site indeed qualifies as an “Internet site dedicated to infringing activities,” it may generate a cease and desist order directing that the site stop its infringing activities. This order can then be served on financial transaction providers or Internet advertising services. The ITC will also submit its determination, the record upon which it is based, and any cease and desist order that it generates to the President, who may “disapprove” of the determination and cease and desist order, causing the order to be terminated. [These provisions were present in a version of the bill available on http://www.keepthewebopen.com/ as of December 28, 2011.]

In some respects, this bill follows the main tenets of the PROTECT IP Act and the Stop Online Piracy Act and adopts some of its structure, with a major difference being the use of the ITC as arbiter over the allegations made against the allegedly infringing website, instead of the myriad federal district courts across the country. (Additional differences are summarized in this chart.) The theory seems to be that the ITC is used to disputes over IP claims, and therefore would be an appropriate judge of the presence of infringing or counterfeiting content – where not all district courts and district court judges are experienced in intellectual property disputes.

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